Heard Ms. B. Sarma, learned counsel for the appellant. Also heard Mr. A.K. Dutta, learned counsel representing the respondent. This second appeal has been preferred against the judgment and decree of reversal dated 05-06-2006 passed by the leaned Civil Judge (Sr. Div.), Dibrugarh in Title Appeal No. 08/2005 which was admitted by this Court to be heard on the following substantial question of law:

“Whether a suit for perpetual injunction is maintainable without prayer for declaration of right, title and interest and possession over the land involved in the suit?”

2. The plaintiff/ appellant had instituted Title Suit No. 29/2002 in the court of Civil Judge (Jr. Div.), Dibrugarh seeking a decree of perpetual injunction restraining the defendant and her engaged workers etc. from entering into or interfere with the peaceful possession of the plaintiff over the suit land measuring 2 kathas covered by Dag No. 151 of PP No. 47 situated at Nizkadomoni gaon, Dibrugarh Town Mouza, district- Dibrugarh more fully described in the schedule to the plaint. The plaintiff’s case is that he had purchased the suit land by means of a registered deed of sale from one Monorama Devi on 17-08-2000 pursuant where to he was put in possession in respect of the purchased land. The plaintiff’s name was duly mutated in respect of the suit land. While the plaintiff was in possession of the suit land, as aforesaid, on 31-03-2002, he had noticed that some construction materials had been stored over a part of the suit land by the defendant to which the plaintiff had raised objection and asked the defendant to remove the said materials from the suit land but she refused to do so. The defendant had no right to enter the suit land but notwithstanding the same she had illegally encroached the suit land by dumping construction materials, as a result of which the plaintiff was compelled to institute the suit seeking a decree of perpetual injunction.

3. On receipt of summons the defendant had appeared and contested the suit. The basic plea of the defendant is that the suit land formed a part of a larger area of land measuring 9B-2K-5L originally owned by the defendant. By means of a registered sale deed No. 1552/91, the defendant had sold the suit land to the vendor of the plaintiff i.e. Monorama Devi. However, later on while delivering possession, the vendor of the plaintiff could not delivered the possession of the entire 2 kathas of land to the plaintiff since the land measuring 1 katha was already under encroachment. After sale of the aforesaid land to Monorama Devi, the defendant had raised a boundary wall in the northern side of the land and hence, there cannot be any question of encroachment of the land of the plaintiff by the defendant. On the basis of such pleadings the defendant had prayed for dismissal of the suit.

4. Based on pleadings of the parties the lower Appellate Court had framed the following issues:

1. Whether the suit is maintainable in law as well as it facts?

2. Whether the suit is barred by the principles of waiver acquisance and estoppels.

3. Whether the plaintiff has right to sue?

4. Whether the suit is bad for non-joinder of necessary party?

5. Whether there is any cause of action?

6. Whether the plaintiff is entitled to relief as prayed for?

5. Both sides had examined the witnesses in support of their respective cases.

6. Upon appraisal of the evidence on record as well as on hearing the learned counsel for the parties, the learned Trial Court had decreed the suit filed by the plaintiff by making the following observation:

“It is order that the suit is decreed on contest with no cost.

1. The plaintiff’s suit is allowed. The plaintiff’s possession over the suit is declared.

2. The defendant her relatives, agent on of her any worker are restraint permanently to enter into the suit land.”

7. Being aggrieved by the judgment and decree passed by the learned Trial Court, the defendant as appellant has preferred the aforementioned title